June 25, 2007

The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message.

Here's my post written after the oral argument. I sympathized with the student and thought that the Court should acknowledge that his rights were violated, but thought the teacher should win on qualified immunity grounds, given the unclarity of the law:

But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.

I'm waiting to see the opinion, but if SCOTUSblog is correct, the Court simply rejected the student's claim that he had a free speech right here.

ADDED: Here's the opinion. Chief Justice Roberts is joined by Scalia, Kennedy, Thomas, and Alito, and we've got concurring opinions from Thomas (alone) and Alito (joined by Kennedy). Breyer (alone) has a mixed opinion about it (concurring in the judgment in part and dissenting in part). And Stevens dissents, joined by Souter [ADDED: and Ginsburg].

A big dispute between the majority and the dissent is whether "Bong Hits 4 Jesus" is a pro-drug message or just ridiculous nonsense. And which way does that cut? Is the student in a better position if we see it as a pro-drug message -- as the majority does -- because then it's political speech and entitled to more protection? No, according to the majority:

The danger here is ... serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy.

Justice Stevens chides the majority for putting low value on free speech in this case and doing the opposite in today's other free speech case, Wisconsin Right to Life. Roberts answers in a footnote: "there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life."

Justice Breyer comes closest to adopting the position I recommended. He would simply say that the teacher has qualified immunity. Unlike me, he would not also use the case to clarify the law. There is a very important issue of judicial restraint here, one that Breyer has written about before. There is a case -- Saucier v. Katz, 533 U. S. 194, 201–202 (2001) -- that says that courts ought to decide first if a right was violated and then determine whether it was clear enough at the time so that the government official should be deprived of qualified immunity. This order of decisionmaking violates the precept that courts should avoid unnecessary questions of constitutional law. Moreover, the Court missed an opportunity to reach consensus (and to proceed by minimalism):

In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post, at 1 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).

This is an appealing argument, but it has a troublesome downside. If the courts keep avoiding making the law clear, defendants continue to prevail on immunity grounds. This could mean that there are rights that we never get to learn about and that government officials are able to continue to violate with impunity.

[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

And no one was unfurling wacky, druggy banners.

Reviewing the school speech cases, he concludes:

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.

He's ready to erase the precedent that began with Tinker (the case about students wearing black armbands to protest the war in Vietnam):

Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 50 (1996). We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.” Tinker, supra, at 526 (Black, J., dissenting).

My, that's bracing. I'm a teacher. And I must confess that gave me a frisson. A perverse frisson?

But let's finally get around to reading what Justice Alito has to say. Joined by Justice Kennedy, this opinion represents the decisive fourth and fifth votes:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (Stevens, J., dissenting)....

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment , as if they were private, nongovernmental actors standing in loco parentis....

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

So don't forget that the school is the state and children (and their parents) are pretty much compelled into submission. Ordinary, this would move us to respect your freedom of speech up to the point of "substantial disruption." But drugs are different. They're very, very dangerous. So the school can ban speech advocating their use -- that is, their illegal use. If you want to say it is bad that drugs are illegal... well, then that's different. And this case isn't saying anything about that.

ADDED: I'm correcting what was a garbled second to the last sentence. (I'd written "If you want to say something bad it is that drugs are illegal..." instead of "If you want to say it is bad that drugs are illegal...") I apologize for the confusion.

"Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point."

Souter hits a home-run with his dissent, which will surely in time be the law:

"Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a "WINE SiPS 4 JESUS" banner which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message, the breathtaking sweep of its opinion suggests it would."

Mort,It shows how stupid Stevens is. He acknowledged advocacy, stupid none the less, but advocacy. I'm confident he thinks religious advocacy is stupid, but he would restrict that and not give such a glowing awareness to the same high school students.

Except the student was NOT at a school function and was not on school property. He was apparently truant and displaying the sign on public property. (Even if he was on a sponsored activity, the facts of the case show that he wasn't being disruptive except in the minds of the principal. This is the same mentality as principals banning touching--they can, so they do.)

If freedom of speech means anything, it means the ability to say things people don't want to hear. Our courts have betrayed us again.

If the Wikipedia account is correct (ha!), the boy was indeed truant but with a group of other kids who apparently had not skipped school that day and, as a group, they were holding up the banner.

http://en.wikipedia.org/wiki/Morse_v._Frederick

If so, what was the principal to have done? Cellphoned the main office to ask if EACH boy was truant? Wait while someone finds out? What if she didn't have a cellphone? Send a messenger while a bunch of kids misbehave on the street?

I thought the boy should have been disciplined for being truant, but what he did on a public street while truant was not the school's business. If he raised the banner on school property, then it would be the school's business. The Supreme Court disagrees I see. Quelle surprise!

This was never about WHAT was on the banner, but the fact that there WAS a banner.

Way to read the opinion. From the majority opinion:

The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.

This was a clear case of viewpoint discrimination. Too bad the Court didn't see it that way.

Be sure to read Thomas's concurrence . . . ("And the idea of treating children asthough it were still the 19th century would find littlesupport today. But I see no constitutional imperativerequiring public schools to allow all student speech.")

Stevens "Surely our national experience with alcohol should make us wary of dampening speech suggesting--however inarticulately--that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely."

Having just now read Alito's opinion, I feel like saying, What's he been smoking? Instead, I'll second Mortimer's mention of Souter's dissent:"Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point."

I'm pretty shocked and saddened by this. I will need to read the whole thing, but the message seems to be: free speech is unqualified, unless it's promoting drug use or something deemed as bad by the Deemers of Badness.

On the surface, this decision really seems to give credence to the idea that the Supreme Court is just there to give a stamp of constitutionality to whatever government behavior or theory of economics is currently in vogue. If this is the case, look for more cases that spend pages explaining why the nanny-state exception to various freedoms.

Under the Court's reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers?

A very very sound point from Souter/Stevens.

We cannot allow the schools to suppress free speech on the grounds that it might encourage students to engage in possibly risky behavior.

What *can't* you block that way?

Schools simply cannot be allowed to say "We disapprove of this lifestyle, behavior, etc, so we will punish you for mentioning it"

Otherwise, we're not sending our kids to havens of discourse and intellectual challenge, we're sending them off to re-education prison camps where they tell you can and cannot think.

I really don't care what was on the banner- it was not the students free speech that was being used. you cannot seperate the action from the context.

As I have said before- if this same student raised the same banner from the back of his pick up truck and drove through the school parking lot and got gigged I would be on his side. HIS free speech was abridged.

At a school function, whether on teh school grounds or right out side of the school, at a televised event, he was using teh school's right to free speech, as a letter to the editor would piggy back on a newspaper's free speech, and any speech not approved by the holder of the right is not allowed.

To me it wouldn't matter if it were pro/anti drug; pro/anti abortion or what have you. If the owner of the right says take it down, you take it down.

Redneck, you apparently fail to understand that the student was NOT at a school sponsored function. Nor was he on school property. Ironically, were he on school property I would agree that the principal had a right to punish the student, though still think it would have been unwise to do so.

Following your reasoning, a principal could declare a permanent and general school sponsored activity and censor everything students do. (Before you laugh, there are schools attempting to do just that!)

So much for high schoolers being draft eligible, what with their not being adult to the level they can deserve free speech...

Yeah and they can't legally drink either. And good luck on renting a car at a major airport if you're under 25. It's tough being young, I always think of the injustice of it all when I pay my son's medical, car, and dental insurance.

Quite a few years ago I was involved in helping to organize a union one of my former work places (yeah, I know that comes as a shocker to you conservatives.) At one point we decided that we wanted to have a peaceful picket and demonstration. So we petitioned management to allow us to demonstrate in a courtyard outside of their offices. They refused, so we picketed and demonstrated on a sidewalk, which in fact was along a road that major road that ran right through the middle of our workplace. In the end the management backed down and backed off of the specific decision they had made which prompted the demonstration, in no small part because of the citywide press coverage that the demonstration got (they'd have been much better off if they had approved the original site.)

The reason the sidewalk was chosen was very plain: it was public access. It was the one place on-site where management had no legal sway, and by law we had the right to demonstrate as long as we did so in a manner that did not block access for anyone else wanting to use the sidewalk or interfere with traffic.

And that is what makes today's Supreme Court decision very troubling.

The substance of the banner is irrelevant. Either this student (and by implication all students, or all people) have a right to express their views in public, or they don't. In the end it is that simple.

Suppose that the banner had read, 'prayer 4 Jesus.' Would the conservative justices who voted against Frederick then vote to allow him to display his banner (or for that matter, it is fair to ask whether the three liberal justices who supported him would vote against him?) And if the answer is 'yes,' then wouldn't it plainly mean that the decision was based on the personal viewpoints of the justices and not the matter of free speech at all?

There is no question that the school has every right to control what is said on school grounds-- they have jurisdiction there, but with this decision can they then ban what students can say off campus? Could they enforce dress codes even when students are not at school? Could they punish students if they write a letter to the paper that portrays the school in an unflattering light? The implications are chilling.

And it won't stop with students. If Mr. Frederick can't display the banner across from his school, could you? Maybe prinicipal Morse might not have any jurisdiction over you, but the mayor would. Or the Governor. Or the President. Suppose that you do (as many people do) disagree with the laws declaring marijuana illegal. Do you now no longer even have the right to say so? This ruling represents a real restriction on the rights of all of us.

You guys don't get it. Frederick's sole purpose was to thumb his nose at authority and be disrespectful. He was trying to be outrageous and disruptive. This event occurred during school hours, under the supervision of school officials on the sidewalk in front of the school.

The principal had a duty to preserve order and respect for authority. I know the whole concept of repsect for authority has become passe for the hip, but it really is necessary in the educational environment.

On page 9 of the opinion, Roberts says that, based on the facts, Frederick can't claim that he was not at school.

Here's another true life story...

My middle-school kids came home a few months ago. One was baffled. The other was grossed out. A group of students had spent the day at school with duct tape over their mouths. This had something to do with homosexuality, though neither of my kids could explain why the other children did what they did.

Baffled, I asked the principal what happened. She said that it was part of a national protest and that she would not have let the 7th graders do what they had done if she had felt they did not understand what they were doing. She said that she had questioned them, and she thought they knew what they were doing.

I go to the internet and indeed find that this was part of some sort of national day of silence re: gay rights. I find a .pdf file from the national organizing group, part of which gave school kids talking points to use to address objections by school administrators.

It may be my imagination but when I later gave this .pdf to the principal, I think her eyes widened a bit in surprise.

Did the 12-year-olds 'understand' the content of their protest, or were they just parroting thoughts put in their mouths?

In other words, if you are engaging in speech and

a) the possibility exists that you do not understand the speech you are making and/or b) the intended audience, classmates, cannot understand what you're trying to communicate, is this appropriate speech in a school context?

Taking affirmative measures doesn't imply or state for the record an amount of understanding for the basis of said intended action and its expected response?

Interesting. How are you supposed to know this?

Mind reading?

Speech is equivalent to drinking now? So what is the tariff level for speech in comparison to alcohol? Really, you've got nerve to compare speech to inebriation. Prohibition of thought is justified in comparison!

So David 53 thinks his paying insurance for his son makes him a ward of opinion regarding what everyone else's kids can say of free mind? Do tell.

The principal had a duty to preserve order and respect for authority. I know the whole concept of repsect for authority has become passe for the hip, but it really is necessary in the educational environment.

The principal acted correctly, and the Court acted correctly.

You should read the opinion before commenting. The Court's reasoning had nothing to do with respect for authority.

with the majority they have right now they have the potential to change the course of law in america for decades on end. this specific decision should tell everybody exactly how narrow their view of free speech is.

That argument would make more sense if the court hadn't, on the same day, overturned some of the free-speech restrictions the previous "liberal" court had established.

If you make your own booze there is no tariff. This kiddo didn't pay a tariff, he got suspended from school. I don't always agree with SCOTUS but in this case I like what they did. It is indeed fascinating.

if you want to take the stand, based on the decision you reference, that this court is "liberal" in their opinions regarding free speech, etc., that's your prerogative. i don't agree...and i think the "bong" decision confirms my point.

I think it is too early to say what the court's position will be on free speech issues -- although the freedom to comment on political campaigns is about a jillion times more important than the right to wave a "bong hits 4 jesus" sign, in my opinion, and for that reason I'm hopeful.

But in any case, if you think liberals are the good guys where "War On Drugs"-related rights violations are concerned then you *really* haven't been paying attention for the last, oh, forty years or so. Both the Democratic and Republican parties are rock-solid "drugs are bad" no-debate-is-allowed save-the-children War-on-Drugs HAWKS, no two ways about it, and neither party has the slightest interest in letting students say anything positive (or humorous) about pot or any other drug.

Incredibly disappointing decision. Apparently it was admitted that the banner was not "disruptive" to the learning environment. Schools need to be able to accomplish their mission: education. This event was not at the core of the school's mission.

Standing outside while the torch goes by is a far cry from the classroom.

Plus, for all the supposed harm of this phrase, millions of teenagers have now probably been exposed to it due to the publicity of the case.

The Principal should have tsked, tsked the sign and figured out a creative response other than censorship. The speech is not the drugs.

In South Lake Tahoe, if you're caught with pot on the California (Democrat) side of the border, you're probably getting a ticket at most. On the Nevada (Republican) side, you're off to jail! I'm surrounded by Democrats in Seattle who'd legalize pot right now ... not for medical use, which seems far beyond being a no-brainer, but for recreational. Several of these posters seem, nevertheless, to think that it's the (D)'s as much as the (R)'s who are holding back legalization. What in the hell are they talking about?

Chief Justice Roberts is joined by Scalia, Kennedy, Thomas, and Alito, and we've got concurring opinions from Thomas (alone) and Alito (joined by Kennedy). Breyer (alone) has a mixed opinion about it (concurring in the judgment in part and dissenting in part). And Stevens dissents, joined by Souter [ADDED: and Ginsburg].

That's why some of us don't want nine old men/women micromanaging these things without fear of not being re-elected.

Even with all the ignoring of the public by congress re the immigration bill, these worthies still have to stand for re-election.

4.I don't know whether any "prominent Democratic organization has come out in favor of marijuana legalization," but I do know that places dense with Democrats tend to be more pro-pot legalization and pro-medical marijuana. And what's the matter with Kansas? http://www.norml.org/index.cfm?wtm_view=&Group_ID=4538Admittedly, pot laws are too restrictive over this whole country, but they tend to be worse in red states.

Neither party has any inclination to legalize and tax marijuana (fund health care anyone?)because older American vote and older Americans are opposed to it.

Getting too caught up in the battle of the parties is just smoke and mirrors to keep us from noticing the man behind the curtain. There are a few public servants, on both sides of the aisle, the rest are power and money grubbing jerks whou have no morals left to sell.

1. National Review is the house organ of conservatives and the Republicans.

The National Review is a conservative magazine. It also almost always prefers Republicans to Democrats, as the former party is basically always more conservative than the latter.

It is not, however, a "house organ" of the Republican Party, as it is quite willing to harshly criticize Republicans and the Republican Party when they stray from the conservative path.

The fact that the National Review (and Bill Buckley specifically) favors drug legalization in no way implies that the idea carries ANY weight with the Republican Party. The Drug War is just one of many areas in which true small-government types differ from Republicans.

If Scalia and Thomas are not an originalists, then there are none on the Supreme Court.

I know where Rev is coming from; Rev is a hardcore libertarian. As Rev knows, I have a lot of respect for that but I am more pragmatic. I'm a fellow-traveler, you might say.

Josh: I don't know where you are coming from but for some reason I sense that you favor the left-liberals on the Court who find the Constitution changing all the time, magically fitting their own belief systems.

I'll take crappy opinions that are closer to interpreting the meaning of the Constitution literally and originally over crappy opinions that bend the Constitution to their effervescent worldview.

Revenant said..."[Scalia stands for nothing if not a straightforward reading of the Constitution?] He stands for nothing, then, because no "straightforward reading of the Constitution" could have led a person to rule as he did in Gonzales v. Raich."

That would be true but for that pesky necessary and proper clause. I'm not saying Scalia's concurrence has it right - I'm agnostic on the point - but even I don't think the question is nearly as close as you imply here.

josh,when you read something like this from seven...it should pretty much sum up the point that he's not interested in discussing decisions, only pigeon-holing you as a "lefty."

Josh: "I don't know where you are coming from but for some reason I sense that you favor the left-liberals on the Court who find the Constitution changing all the time, magically fitting their own belief systems."

"There is no question that the school has every right to control what is said on school grounds-- they have jurisdiction there, but with this decision can they then ban what students can say off campus?"

...what do people think of the 3-hour WWE "tribute" last night on the USA Network...for the wrestler (Benoit)...who, over the weekend, strangled his wife, smothered his seven-year old son, then hung himself?

why would a network allow something like that to air? i certainly understand profits, etc., but this does seem rather bizarre...even for the WWE.

Rev -- Sadly, I think that Commerce Clause litigation is a lost cause for libertarians.

Scalia has, in the past, invoked the Commerce Clause as a reason for overturning laws and limiting Congressional power. But the Raich case made it clear that he did so purely because the Commerce Clause gave him a flimsy rationalization for ruling the way he personally wanted to, and not because he actually thinks the Commerce Clause limits Congressional power.

This has nothing to do with being a libertarian. Thomas is certainly no libertarian, but he still saw what is glaringly obvious to anyone who is serious about Constitutional limits on Congressional power: that if a privately produced, privately consumed substance is "interstate commerce", then EVERYTHING is, and there are no limits on what Congress is allowed to govern.

Rev- The argument is that Congress has power to ban an interstate market in drugs, and consequentially, the necessary and proper clause permits it to reach into intrastate markets and even the production of the commodity. That argument may be wrong - I tend to think that it at least articulates the wrong test, even if were right in principle - but it's hardly flimsy" and it does have some limits on it reach. Nevertheless, I do accept that Justice Scalia is I think rather less interested in federalism than I would like. I read an article a few months ago - I have to try and find it again - that fleshed out what it argued was the positions on federalism from all five of the so-called "federalist five" justices, concluding that Scalia was the most lukewarm. No one's perfect.

David53 said... As much as speech is equivalent to being draft eligible.Yeah, drinking age and draft age often don't match, and volunteers have signed up before the draft eligible age as well in our past.